6.  The applicant was born in 1947. After a number of periods in prison and hospital the applicant was admitted to Ashworth Special Hospital (“Ashworth”) from prison under sections 47 and 49 of the Mental Health Act 1983 on 19 July 1984. He remained an in-patient until March 1992, when he was discharged by the Mental Health Review Tribunal. About a year later he was arrested and charged with a number of offences and was admitted, from prison, to a medium secure unit in August 1993. In that unit he became increasingly psychotic, aggressive and violent. He was placed in seclusion and transferred to Ashworth on 1 March 1994. While at Ashworth he has been secluded on a number of occasions for the protection of others: between 26–30 May 2001, 2–20 June 2001, 18 December 2001–2 January 2002 and 28 March–5 April 2002. Each period of seclusion involved confinement to his bedroom or another room; however, during each period of seclusion, the applicant was allowed periods of association either with staff or other patients. These periods ranged from five minutes to over eight hours. In the first period of seclusion, he had approximately six and a half hours’ association in total; in the second, fifty one hours’ association; in the third, twenty-seven hours’ association; and in the fourth, twenty-one hours’ association. There was only one day, 22 December 2001, when the applicant was not allowed any association at all.
7.  Each period of seclusion was made by Ashworth pursuant to its seclusion policy (“the policy”: see paragraphs 26–28 below). There is a national Code of Practice, issued by the Secretary of State for Health under the Mental Health Act, which includes a section on seclusion of psychiatric patients (see paragraphs 23–25 below). The applicant maintains that the hospital’s seclusion policy differs substantially from the Code, particularly by reducing the number and frequency of reviews of his seclusion by a doctor from that laid down in the Code.
8.  The applicant first challenged Ashworth’s seclusion policy on this basis in the High Court in 1999. On 10 October 2000, the High Court found that the hospital’s policy, by reducing the frequency of review of a patient’s seclusion below that provided for in the Code of Practice, was unlawful and was not justified by the fact that the hospital was a maximum secure hospital. In particular, the failure after the third day of seclusion to have twice-daily medical reviews of the continuation of seclusion was not justified.
9.  Ashworth did not change its policy and the applicant commenced further judicial review proceedings on 12 July 2001. In December 2002, the hospital adopted a new policy, providing for medical review of the continuation of the use of seclusion twice daily on days 2-7 of the seclusion and thereafter three reviews a week by a doctor and a weekly multi‑disciplinary review. The applicant continued to challenge the legality of the policy on the grounds that from day 8 onwards it did not comply with the review procedures found necessary by the High Court. He also argued that the Code of Practice suggested that there should be medical reviews every four hours. Finally he argued that the hospital’s policy was incompatible with Articles 3 and 8 of the Convention.
On 5 July 2002, the High Court ruled that the minimum level of severity required for Article 3 was not met and there was no breach of Article 8. It also found that the Code of Practice was merely guidance. The High Court also accepted the evidence of Ashworth that the applicant had not remained in seclusion for longer than had been necessary, and that there was no evidence that more frequent reviews would have reduced the time spent in seclusion.
10.  The applicant appealed to the Court of Appeal and, on 16 July 2003, it allowed his appeal. Relying on X v. the United Kingdom, no. 6840/74, Commission decision of 2 May 1997, Decisions and Reports (DR) 10, p. 5 (cited in the judgment as A. v. the United Kingdom (1980) 3 EHRR 131), it found that seclusion of a detained psychiatric patient was capable of amounting to a breach of Article 3. On the basis of this Court’s ruling in Keenan v. the United Kingdom, no. 27229/95, §§ 108-112, ECHR 2001‑III, it also found that the Code of Practice, in so far as it regulated seclusion, had to have a status and weight consistent with the State’s obligation to avoid ill-treatment of patients detained by the State. Where there was a risk that agents of the State would treat their patients contrary to Article 3, the State should take steps to avoid this through the publication of a Code of Practice, which its agents were obliged to follow unless they had good reason to depart from it.
11.  The Court of Appeal also held that seclusion would breach Article 8 of the Convention unless it could be justified under Article 8 § 2. In considering the need for any interference to be “in accordance with law” in terms of Article 8 § 2, it found that the transparency and predictability required by this provision were supplied by the Code of Practice. It found:
“It would fly in the face of the original purposes of the Code if hospitals or professionals were in fact free not to follow it without a good reason. It is clear that section 118(2) (see para 4 above) cannot have been intended as a ‘take it or leave it’ provision. In relation to those matters where a patient’s human rights are or may be engaged, the arguments for according the Code the greater status are compelling. Where there is a risk that agents of the state will treat its patients in a way which contravenes Article 3, the state should take steps to avoid this through the publication of a Code of Practice which its agents are obliged to follow unless they have good reason to depart from it. Where there is an interference with the rights protected by Article 8, the requirement of legality is met through adherence to a Code of Practice again unless there is good reason to depart from it. The same will apply where the Code deals with the deprivation of liberty within the meaning of Article 5.... We conclude that the Code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient. They may identify good reasons for particular departures in relation to groups of patients who share particular well-defined characteristics, so that if the patient falls within that category there will be a good reason for departing from the Code in his case. But they cannot depart from it as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the Code’s definition of seclusion and its requirements.”
It concluded that the hospital’s seclusion policy was unlawful. While the court considered Article 5 of the Convention on its own motion, relying on this Court’s rulings in Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, Aerts v. Belgium, judgment of 30 July 1998, Reports of Judgments and Decisions 1998‑V and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, it found that seclusion did not amount to a further deprivation of liberty.
12.  Ashworth appealed to the House of Lords. On 13 October 2005 the House of Lords (by a majority of three to two) allowed the appeal.
13.  In the lead speech, Lord Bingham (with whom Lord Hope and Lord Scott agreed) found that the Code of Practice was only guidance and he was satisfied that the hospital had shown good reasons for departing from it. He stated:
“21. It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2) [of the Mental Health Act 1983 – see paragraph 22 below], any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.
 22. The extensive evidence adduced by the Trust makes clear that the Code was very carefully considered. This is indeed evident from the policy itself, which reproduces important parts of the Code and contains cross-references to it. But the policy did depart from the Code in providing for less frequent medical review after Day 7. As the [High Court observed], the Trust ‘has explained the justification for the policy in very considerable detail’. ...
 23. In considering the frequency of medical review after Day 7 the Trust were in my opinion entitled to take account of three matters in particular. First, as pointed out in the Introduction to the policy, the Code was directed to the generality of mental hospitals and did not address the special problems of high security hospitals, containing as they inevitably do the most potentially dangerous patients in the country. Secondly, the Code did not recognise the special position of patients whom it was necessary to seclude for longer than a very few days. It has been the experience of the Trust that the condition of those secluded for more than a week does not change rapidly, and that it is in any event unsafe to rely on an apparent improvement without allowing enough time to pass to give grounds for confidence that the improvement will endure. Thirdly, the statutory scheme, while providing for the Secretary of State to give guidance, deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing and caring for the patients. 24. The witness statements submitted by the Trust are very strongly challenged in statements and evidence on behalf of Mr Munjaz, Mind and the Mental Health Act Commission. This is a highly controversial subject, on which professional opinions differ. The 7-day divide between short-term and long-term secluded patients is criticised. So is the practice, adopted at Ashworth, of allowing secluded patients to spend periods of time, sometimes lengthy periods, in closely supervised association with other patients. There are differences of practice, not all of them fully explained, between Ashworth, Broadmoor and Rampton. It is not, however, for the courts to resolve debatable issues of professional practice, but to rule on issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as unlawful. In the present case, even with the intense scrutiny called for, I cannot regard the long and detailed statements submitted by the Trust as failing to show good reasons for adopting the policy it has adopted, even though there are many eminent professional experts who take a different view.”
14.  Lord Bingham found that Article 3 was not breached by the policy. He held as follows:
“29...Despite much learned argument addressed to the House, I do not find it necessary to discuss the extent or probability of the risk or the extent to which it must be foreseen. For I agree with [the High Court] that the policy must be considered as a whole, that the policy, properly operated, will be sufficient to prevent any possible breach of the article 3 rights of a patient secluded for more than 7 days and that there is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights. The patient must be the subject of recorded observation by a nurse at least every 15 minutes and of recorded review by two qualified nurses every 2 hours, one of them (where practicable) not involved in the decision to seclude. In the ordinary course of things it is the nurses who know the patient best, and the nurse in charge of the ward can terminate seclusion at any time. There must be a daily review by a ward manager or site manager of a different ward: these, as the evidence shows, are senior and experienced people. There must be 3 medical reviews each week, one of them involving the patient’s responsible medical officer. There must in addition be a weekly review by a multi-disciplinary patient care team, including the patient’s RMO [Resident Medical Officer]. The seclusion of the patient must be monitored by the hospital’s Seclusion Monitoring Group, which includes the medical director, the hospital director, the head of psychology, the senior nurse, the head of social care, 2 nurses, the ward manager and a non-executive director of the Trust, some of whom must have seen the patient. It reports to the hospital’s Clinical Governance Committee. The Mental Health Act Commission must be informed once a patient has been secluded for 7 days and must thereafter receive regular progress reports: as already noted, it has statutory power to visit and investigate any complaint. The patient may, wherever possible, be visited by a relative. The patient or his representative may appeal to the medical director or his deputy, who must review the case and take account of any representations made. The patient may seek judicial review of the decision to seclude him or continue to seclude him, or to challenge the conditions in which he is secluded. It cannot in my opinion be said, bearing in mind that the standard set must obtain in all member states of the Council of Europe, that a policy containing these safeguards exposes a patient secluded for more than 7 days to any material risk of treatment prohibited by article 3.”
15.  On Article 5, Lord Bingham endorsed the Court of Appeal’s finding that it did not apply and added:
“The approach to residual liberty which appears to have prevailed in Canada (see Miller v The Queen (1985) 24 DLR (4th) 9) does not, as I understand, reflect the jurisprudence of the European Court. I do not for my part regret this conclusion since, as the Court of Appeal pointed out (in para 70 of its judgment), improper use of seclusion may found complaints under article 3 or article 8, and article 5(4) provides that a successful challenge should result in an order that the detainee be released, not in an order that the conditions of his detention be varied. I would not, for example, understand article 5(4) as enabling a prisoner, lawfully detained, to challenge his prison category. In any event, the Ashworth policy, properly applied as one must assume, does not permit a patient to be deprived of any residual liberty to which he is properly entitled: seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who have a right to be protected.”
16.  On Article 8 of the Convention, Lord Bingham doubted that seclusion, when properly used in order to protect others from violence and intimidation and when used for the shortest period necessary, was an interference with a patient’s Article 8 rights. He considered that “a detained patient, when in his right mind or during lucid intervals, would not wish to be free to act in such a way [to be violent or intimidating] and would recognise that his best interests were served by his being prevented from doing so.” However, for Lord Bingham, if there were an interference then the “in accordance with law” requirement of Article 8 § 2 had not been breached. He found (at paragraph 34 of the judgment):
“The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder... it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient flowing from a power of detention for treatment’ treatment”: see Auld LJ in R v Broadmoor Special Hospital Authority, Ex p S, H and D (5 February 1998, unreported) and the Court of Appeal judgment in the present case, para 40. The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are not in accordance with or prescribed by law.”
17.  Lord Hope, in agreeing with Lord Bingham, stated:
“In my opinion there is nothing that is arbitrary about the way in which Ashworth has departed from the Code in the framing of its Policy. A careful reading of it shows that it is based very substantially on the Code’s guidance, and that where it departs from it – with regard to the frequency of reviews in particular – it does so because of its perception of the way seclusion needs to be used in the special circumstances that obtain at Ashworth. The system that it lays down has been carefully designed to deal with its use for much longer periods than the Code’s guidance was designed for. Its purpose is to ensure that its use for these longer periods is not resorted to at random or arbitrarily. Following the Code’s example, that is the whole purpose of the Policy. 97. As for the question whether Ashworth was free to depart from the Code as a matter of policy, and not just in relation to individual patients or groups of patients, I do not see why this should be so, provided of course that it can demonstrate that it had a good reason for doing so. The distinction which the Court of Appeal made between a departure in the case of individual patients or groups of patients and a departure which takes the form of a written policy for dealing with a particular form of intervention is elusive, and I do not think that it can be regarded as acceptable. There is an obvious danger that, if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available, decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable. That, precisely, is what Ashworth’s Policy seeks to avoid. Good clinical and medical practice dictates that seclusion should only be used in particular situations to protect others and subject to particular conditions to ensure that the patient is not harmed or secluded for any longer than is necessary. The purpose of the Policy is to ensure that the conditions under which it is to be resorted to are clearly understood and carefully observed so that decisions that are taken about the management of this procedure are consistent and not arbitrary. 98. I am in full agreement with all that my noble and learned friend Lord Brown of Eaton-under-Heywood has said about this case except with regard to the issues raised by article 8(2) of the Convention, as to which I have the misfortune to disagree with him. The point that divides us is whether the practice of seclusion carried out at Ashworth in accordance with the Policy is “in accordance with the law.” As his quotation from para 39 of the Court’s judgment in Hewitt and Harman v United Kingdom (1991) 14 EHRR 657 reminds us, it is the quality of the law that matters rather than the form it takes. The touchstones by which its quality is measured are, as Lord Brown says, its transparency, its accessibility, its predictability and its consistency. Where these qualities are present the measure protects against the abuse of power and against conduct which is arbitrary. There is no doubt that the Code satisfied these tests, notwithstanding the fact that there is no statutory obligation to comply with it. In my opinion Ashworth’s Policy, which is careful in all these respects to follow the Code’s example, does so too. It is, of course, true that Ashworth could alter its Policy. But if it did so every departure from the Code would have to be justified in the same way as the Policy itself has had to be justified. I do not think that the fact that Ashworth has its own Policy opens the door to further departures from the Code that could be described as arbitrary. 99. Assuming, of course, that Ashworth has shown - as it has - clearly, logically and convincingly that it had cogent reasons for departing from the Code in these particular respects in favour of its own Policy, I would hold that its decision cannot be said to have been unlawful. Concerns that a departure from the Code in this instance will lead to widespread variations in practice and undermine its status generally or that your Lordships’ judgment lowers the protection offered by the law to mentally disordered patients are misplaced, in my opinion. The requirement that cogent reasons must be shown for any departure from it sets a high standard which is not easily satisfied. The protection which the law provides to ensure that any departures are compatible with Convention rights is an additional safeguard. This has been amply demonstrated in practice since the Code was promulgated. Ashworth is the only place where a hospital has departed from what the Code says about seclusion in favour of its own policy. While I would respectfully endorse everything that Lord Brown says in the last paragraph of his speech [paragraph 127, quoted below], I believe that it would be wrong to see this judgment as opening the door to substantial departures from the Code on the part of individual hospitals. The decision of the majority should not be seen as an invitation to other hospitals to do this and resort to their own policies. The status of the Code remains unchanged, and so does the need to show cogent reasons if in any respect it is departed from.
18.  Lord Scott, in agreeing that Ashworth’s policy was in accordance with the law for the purposes of Article 8, emphasised the duty the hospital owed to protect patients and staff from harm. Once it was accepted that Ashworth had no statutory obligation to have a seclusion policy that conformed in every respect to the Code and that Ashworth’s seclusion policy was rational and reasonable in itself despite its divergences from the Code, there could be no room for any suggestion that the implementation of Ashworth’s seclusion policy for the safety of other inmates was otherwise than in accordance with the law.
19.  Lord Brown concurred in respect of Articles 3 and 5 and dissented in respect of Article 8. He did not find that the hospital’s policy was “in accordance with law” for the purposes of Article 8 § 2, since it did not have sufficient “quality of law”. In his view, for the requirements of Article 8 § 2 to be met, the Code of Practice had to be given the higher status of the force of law, disentitling individual hospitals to depart from it on policy grounds. He concluded:
“125. Not without some considerable hesitation I have reached the conclusion that the Code must indeed be given this higher status. Without such a Code the legal position would be this. The only authority for seclusion would be, in the case of patients detained under the 1983 Act, the implied power of control over those lawfully detained; in the case of informal patients, the common law doctrines of necessity and self-defence. The actual use of seclusion in individual cases would not be regulated save insofar as each hospital practising it would be required to adopt, publish and practise a rational policy of its own. That, of course, is precisely what Ashworth does. But by the same token that Ashworth is permitted to adopt its own policy, so too may other hospitals. Much of the factual focus of the appeal was upon those of Ashworth’s patients who are detained for over seven days. But Ashworth’s policy departs from the Code much earlier than this: only for the first 12 hours does Ashworth conduct medical reviews at 4 hourly intervals as specified by the Code; from then until the end of the seventh day such reviews occur twice (rather than six times) a day. Other hospitals too may think it unnecessary to conduct reviews as frequently as provided for by the Code. And of course there is nothing to stop Ashworth altering its policy whenever it thinks it right to do so. The policy of an individual hospital can be changed with infinitely greater ease than the Code itself.
... 127.The Secretary of State’s Foreword to the 1999 issue of the Code stated that: ‘the Code should be followed’ until necessary new legislation came into force. It ended:
‘The Code provides essential reference guidance for those who apply the Act.               Patients and their carers are entitled to expect professionals to use it.’
Under the ruling proposed by the majority of your Lordships, patients and their carers must be reconciled instead to substantial departures from the Code on the part of individual hospitals who may prefer to follow a different policy of their own. It is my reluctant conclusion that not only will these patients and carers be disappointed in their expectations but that the practices in the event adopted by any such hospital (rational though I acknowledge they must certainly be) will not have the necessary legal quality to render them compatible with the rule of law. Unless it is to the Code that one can look for regulation carrying the force of law it is not in my opinion to be found elsewhere. Hospital policies themselves provide too insubstantial a foundation for a practice so potentially harmful and open to abuse as the seclusion of vulnerable mental patients.”
20.  Lord Steyn dissented on all three points. On Articles 3 and 8 he approved the reasoning of the Court of Appeal. On the status of the Code of Practice, by section 118(1) of the Mental Health Act 1983 (which directs the Secretary of State to prepare such a code) he found:
“...in section 118(1) Parliament had authorised a Code with some minimum safeguards and a modicum of centralised protection for vulnerable patients. This is inconsistent with a free-for-all in which hospitals are at liberty to depart from the published Code as they consider right. Indeed, it seems unlikely that Parliament would have authorised a regime in which hospitals may as a matter of policy depart from the Code. After all that would result in mentally disordered patients being treated about seclusion in a discriminatory manner, depending on the policy adopted by the managers and clinicians in particular hospitals.”
He also found Article 5 to be applicable, stating as follows:
“Under English law a convicted prisoner, sentenced to imprisonment, retains all his civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1983] AC 1, at 10G, per Lord Wilberforce. To that extent the prisoner has a residual liberty. The concept of residual liberty is a logical and useful one as demonstrated by the decision of the Canadian Supreme Court in Miller v The Queen (1985) 24 DLR (4th) 9. The reasoning in Miller shows that in a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘prison within a prison’: it is capable of constituting a material deprivation of residual liberty
...
It would also be wrong to assume that under the jurisprudence of the ECHR residual liberty is not protected. There is relevant European authority not placed before the Court of Appeal. In Bollan v United Kingdom, App No. 42117/98, the European Court of Human Rights, albeit in an admissibility decision, considered the point. The complaint was a comparatively weak one: the prisoner had been confined to her cell, unlawfully it was said, for some two hours. The evidence was that she was a heroin addict who objected to that restriction on her residual liberty. In European terms the case simply did not reach the necessary threshold of severity. The European Court of Human Rights dealt with the legal principles arising under the ECHR as follows:
‘It is undisputed in the present case that Angela Bollan was lawfully detained in Corton Vale prison pursuant to a court order remanding her in custody pending sentence for a criminal offence. Nor is it disputed that the prison was an appropriate establishment for that type of detention or that there was anything inappropriate concerning her place of detention within the prison. The principal issue is whether the decision of the prison officers to leave Angela Bollan in her cell until lunchtime - a period of less than two hours - in itself disclosed an unjustified and unlawful deprivation of her liberty within that prison.
The court does not exclude that measures adopted within a prison may disclose interferences with the right to liberty in exceptional circumstances. Generally however, disciplinary steps, imposed formally or informally, which have effects on conditions of detention within a prison, cannot be considered as constituting deprivation of liberty. Such measures must be regarded in normal circumstances as modifications of the conditions of lawful detention and therefore fall outside the scope of Article 5 § 1 of the Convention (see Application no. 7754/77, dec. 9.5.77, D.R. 11, p 216. In appropriate cases, issues may arise however under articles 3 and 8 of the Convention.’
  (My emphasis)
Plainly, the ECtHR has not ruled out as a matter of principle the concept of residual liberty. On the contrary, it accepts that there is scope for such a doctrine. It will be noted also that the ECtHR observed that in such cases ‘in appropriate cases, issues may arise however under articles 3 and 8 of the Convention’. To that it must be added that, if substantial and unjust seclusion of a mentally disordered patient cannot in our domestic law be protected effectively under articles 3 and 8, the case for protection under article 5 becomes ever stronger. It follows that a substantial period of unnecessary seclusion of a mentally disordered patient, involving total deprivation of any residual liberty that the patient may have within the hospital, is capable of amounting to an unjustified deprivation of liberty.”